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- 1 - REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1304     OF 2010 [Arising out of S.L.P.(Crl.)No.6204 of 2008]

Automobile Products India Ltd.  ....Appellant   

Versus Das John Peter & Ors. ....Respondents

J U D G M E N T Deepak Verma, J. 1. Leave granted. 2. Under the web of hypertechnicalities justice has taken a  

back seat as is projected in the order dated 22.11.2006,  passed  by  Additional  Chief  Metropolitan  Magistrate,  Girgaum,  Mumbai  in  Crl.  Case  No.  38/S/2005  filed  by  appellant herein against accused  respondent No.1 and 2,  whereby and whereunder the appellant's criminal complaint  filed  under  Section  406  read  with  Section  34  of  the  Indian Penal Code [hereinafter referred to as "IPC"] and  under Section 630 of the Companies Act, 1956 (hereinafter  referred to as "the Act") was dismissed. Against the said  order  of  dismissal,  the  appellant  herein  filed  an  application before the learned Single Judge of the High  Court in Criminal Application No. 450 of 2007 seeking  leave to file  the  appeal which was also dismissed on

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14.7.2008,  - 2 -

giving  rise  to  filing  of  this  appeal  by  the  original  complainant.   Unfortunately,  the  accused  have  also  with  vehemence  supported  hypertechnicalities  adopted  by  the  aforesaid two courts, to contend that no interference is  called  for  in  the  light  of  the  facts  as  found  in  the  aforesaid two orders. 3. Facts shorn of unnecessary details are mentioned herein  

below: 4. Appellant is a Company (hereinafter shall be referred to  

as "the Company") duly registered under the Act and is  carrying  on  business  of  manufacturing  two  and  three  wheelers' automobile products. Mr. V.S. Parthasarthy is  the Factory Manager of the Appellant-Company and has been  posted in Mumbai.  A resulution has been passed by the  Company  on  31.12.2001  to  authorise  Mr.  V.S.  Parthasarathy, Factory Manager to represent the company  and  to  sign,  verify,  execute  and  deliver  all  vakalatnamas,  pleadings,  complaints,  affidavits,  declarations,  petitions, written statements, rejoinders,  papers, deeds, receipts, assurances etc. in a court of  law.  On the same day, he has been duly authorised by  virtue of the Power of Attorney executed in his favour by  the  Appellant  Company   to  file  and  prosecute  the  aforesaid complaint.

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5. On the complaint having been filed before the Additional  Chief  Metropolitan  Magistrate,  the  same was  

- 3 - registered.   The  allegation  in  the  complaint  is  that  company is having a flat situated at 17, Carmichael Road  (behind   Jaslok  Hospital),  Mumbai.   One  room  near  the  garage  (hereinafter  shall  be  referred  as  the  'servant  quarter')  is also under the ownership of the company for  being used by its servants.  Even though, the complaint was  filed  under  Section  406  /  34  of  the  IPC  as  also  under  Section 630 of the Act, but cognizance was taken by the  trial court only under Section 630 of the Act. 6. Respondent No. 1 (accused No.1 herein) was working as a  

caretaker with the Company to look after the flat.  It is  not in dispute  that he has retired from the service of  the Company with effect from 6.3.1992.   The servant  quarter was allotted to accused No. 1 by virtue of his  service in the company.  Obviously, after his attaining  age of superannuation, he was supposed to have delivered  its  peaceful  and  vacant  possession  to  the  appellant/company.  Instead  of  doing  so,  he  gave  its  possession to his daughter, accused No.2, and shifted to  Ambernath.  As on date, it is accused No. 2, daughter of  accused No.1, who is in actual physical possession of the  said servant quarter.

7. It is pertinent to note that a written undertaking is

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said to have been tendered by respondent no.1 on 5.1.2000  to the effect that he will vacate the servant quarter  within one month thereof.

- 4 - 8. Since  despite  serving  several  legal  notices  to  the  

accused, they refused to hand over its peaceful vacant  possession to the appellant, it was constrained to file  the aforesaid complaint.   

9. Shri V.S. Parthasarthy, appeared as PW-1, and  deposed  before the Court circumstances under which accused No.1  was handed over possession of the servant quarter, where  he  had  worked  as  caretaker.   After  his  retirement,  despite promise made to the Company he has failed to  vacate the servant quarter.  His evidence has been dealt  with  extensively  by  the  trial  court  but  it  is  not  required to be considered at this stage as Appellant's  Criminal  Complaint  has  been  dismissed  on  technical  ground.

10.Defence of the accused  in short  was that the complaint  as filed by company through Mr. V.S. Parthasarthy is not  maintainable  inasmuch  as  the  Power  of  Attorney  dated  31.12.2001, said to have been executed in favour of Mr.  V.S. Parthasarthy is a fictitious document.  The services  of  accused  No.1  were  never  terminated  and  even  after  retirement he came to be re-appointed.  Thus, he has a  right to continue in its possession.   As regards his

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undertaking  given  to  the  Chairman  of  the  Company  on  5.1.2000, wherein he specifically agreed to vacate the  premises on or before 31.1.2000, he contended the same  was not tendered voluntarily, meaning thereby the same  was  

- 5 - given under coercion, threat, undue influence,  thus it was  not binding. 11.Learned  trial  court  critically  examined  the  Power  of  

Attorney and came to the conclusion that the same was  executed on 31.12.2001, was notarised on 5.6.2001, and  the stamp papers were purchased on 18.4.2002, which gives  rise  to  suspicion  with  regard  to  genuineness  and  correctness of Power of Attorney.   Ultimately, it held  that the said Power of Attorney is a fictitious document.  Thus,  on  the  strength  of  it,  complaint  could  not  be  filed. As regards resolution of the company passed on  31.12.2001 was concerned, it was held that complainant  failed to file the same, while he was in the witness box.  Admittedly, the company faced financial crisis and has  since been closed with effect from 21.1.1993 under the  orders of BIFR.

12.Ultimately,  after  appreciating  oral  and  documentary  evidence available on record, the following order came to  be passed  by Additional Chief Metropolitan Magistrate,  Mumbai.

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    "The accused No.1 Mr. Das John Peter  and  accused  No.2  Ms.  Grace  Peter  are  hereby  acquitted for the offence punishable u/s.630  of the Companies Act."  Their  bail  bonds,  if  any,  stands  cancelled."

13. Feeling  aggrieved  thereof,  the  appellant  filed  an  Application  before  the  learned  Single Judge of the  High  

- 6 - Court seeking leave to file appeal, against the order of  acquittal of the accused. Unfortunately, the learned Single  Judge did not examine the matter in proper perspective and  fell  into  grave  error,  in  refusing  to  grant  leave  and  rejected  the  appellant's  application,  for  prosecution  of  the accused under Section 630 of the Act. 14.Feeling  aggrieved  thereof,  this  appeal  has  been  

preferred by the complainant company.  15.We have accordingly heard Mr. Altaf Ahmed learned Senior  

Counsel  for  the  appellant,  Mr.  Sanjay  Kharde  for  respondent No.1 and 2 and Ms. Asha Gopalan Nair, for  respondent  No.  3-State  of  Maharashtra  at  length.  Perused the record.

16.At the outset, we inquired from learned counsel for the  accused, whether he would be ready and willing to vacate  the premises, provided reasonable and sufficient time is  granted to them but learned counsel vehemently opposed  any such suggestion and contended that the complaint has

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rightly been dismissed on technical grounds which went to  the  root  of  the  matter,  therefore  no  interference  is  called for.

17.With an intention to satisfy ourselves with regard to  the  correctness,  genuineness  and  authenticity  of  the  resolution dated 31.12.2001 passed by appellant company  in  favour  of  Mr.  V.S.  Parthasarthy  and  the  Power  of  Attorney  

- 7 - of the even date, we requested the appellant to produce the  originals for our perusal.  They have produced the same  before  us.  We  have  critically  and  with  microscopic  eye  examined the same. After doing so, we do not find either of  the  two  documents  can  be  termed  as  fictitious  or  manufactured documents so as to oust the appellant from the  arena of justice.  18.No doubt, it is true that Power of Attorney was executed  

on 31.12.2001, but has been scribed on a stamp paper  purchased  on  18.4.2002.  But  it  has  been  notarised  on  5.6.2002 and not on 5.6.2001 as has been noted by the  trial court.  The Rubber stamp seal put by the notary  clearly depicts it as 5.6.2002.   

19.Thus, after going through the same, it leaves no shadow  of doubt in our mind that the same are genuine and duly  authorised Mr. V.S. Parthasarthy to file and prosecute  the complaint against the accused.  We had also passed on

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the originals to the learned counsel for the respondent- accused   to  satisfy  himself  but  still,  after  going  through the same he persisted in his arguments tooth and  nail that the date of Power Attorney in fact is 5.6.2001  and not 5.6.2002.  However, we are unable to agree to the  argument  as  advanced  by  the  learned  counsel  for  the  accused  as  he  is  trying  to  stretch  it  beyond  our  comprehension.

- 8 - 20.Admittedly, neither the Trial Court nor the High Court  

have gone into the merits of the matter.   Thus with an  intention to do complete justice to the parties, we have  heard the counsel for the parties at length and gone  through the merits of this appeal.

21.It is not in dispute that accused  No. 1 was appointed  as  a  caretaker  to  look  after  the  flat  of  the  appellant/company at 'Kamal Mahal' Co-operative Housing  Society Ltd., Carmichael Road, Bombay 400 026 owned and  possessed by the Company.  It is further not in dispute  that accused No.  1 had retired from the company w.e.f.  6.3.1992.  At  the  time  of  entering  into  service,  respondent  No.  1  had  entered  into  agreement  with  the  company  on  22.9.1980,  which  specifically  granted  permission to the company to revoke the licence, of the  servant quarter at any time and to take possession.  It

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is further not in dispute that on 5.1.2000 accused No.1  wrote  a  letter  to  the  Chairman  of  the  Company  specifically  and  categorically  agreeing  to  vacate  the  servant quarter by 31.1.2000. However, he did not deem it  fit and proper to honour his own  commitment rather has  defied it on various grounds. To appreciate the arguments  as advanced by learned senior counsel Shri Altaf Ahmed  for  the  appellant,  it  is  necessary  to  examine  the  relevant provisions of the Act under which, the company's  complaint was filed.

- 9 - 22.Section 630 of the Act reads as under:

"630.   Penalty  for  wrongful  withholding  of  property  property.-   (1)    If  any  officer  or  employee of a company.- (a) wrongfully  obtains  possession  of  any  property of a company; or (b)    having  any  such  property  in  his  possession, wrongfully  withholds  it  or  knowingly applies it to purposes other than those  expressed or directed in the articles  and  authorised by this Act, he shall, on the complaint of the company  or  any  creditor  or contributory  thereof, be  punishable  with fine which may extend to ten thousand rupees. (2)  The Court trying the offence may also order  such officer or employee to deliver  up  or  refund, within a time to be fixed by the Court,  any such property wrongfully  obtained  or  wrongfully withheld or knowingly misapplied, or in  default, to suffer imprisonment for a term which  may extend to two years."

23.A reading of the aforesaid provision makes it clear that

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a criminal complaint seeking possession of the servant  quarter at the instance of company against the accused  was maintainable and in our opinion cognizance thereof  was rightly taken by the Magistrate but committed a grave  error in rejecting it on technical grounds, instead of  deciding it on merits.

24.Learned counsel for appellant has also placed reliance  on Section 621 of the Act, dealing with offences against  the Act to be cognizable only on complaint by Registrar,  share holder or government.  To appreciate the arguments  in  

- 10 - this regard, the said Section 621 of the Act is reproduced  hereinbelow:

"621. Offences against Act to be cognizable  only  on  complaint  by  Registrar,  shareholder  or  Government. (1)No court shall take cognizance of any offence  

against this Act, which is alleged to have been  committed  by  any  company  or  any  officer  thereof, except on the complaint in writing of  the  Registrar,  or  of  a  shareholder  of  a  company,  or  of  a  person  authorised  by  the  Central Government in that behalf:

Provided that nothing in this sub-section shall  apply to a prosecution by a company of any of its  officers: Provided  further  that  the  court  may  take  cognizance  of  offence  relating  to  issue  and  transfer of securities and non-payment of dividend  on a complaint in writing by a person authorised  by the Securities Exchange Board of India. (1A)  Notwithstanding  anything  contained  in  the

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Code of Criminal Procedure 1898 (5 of 1898), where  the  complainant  under  sub-section  (1)  is  the  Registrar or a person authorised by the Central  Government,  the  personal  attendance  of  the  complainant before the Court trying the offence  shall not be necessary unless the Court for the  reasons to be recorded in writing requires his  personal attendance at the trial. (2)Sub-section (1) shall not apply to any action  

taken by the liquidator of a company in respect  of any offence alleged to have been committed  in respect of any of the matters included in  Part VII (sections 425 to 560) or in any other  provisions of this Act relating to the winding  up of the companies.

(3) A liquidator of a company shall not be deemed  to  be  an  officer  of  the  company,  within  the  meaning of sub-section (1)."

-11 - 25.However,  it  is  not  necessary  to  examine  the  

applicability of the aforesaid Section 621 of the Act to  the  present  case  as  it  appears  to  be  doubtful  to  categorise accused No. 1, who was admittedly working as  caretaker, as an  officer of the company.  Thus, we deem  it fit and proper to leave the said question open at this  stage.   

26.We  have  carefully  examined  the  originals  of  the  resolution dated 31.12.2001 as also Power of Attorney of  the even date executed in favour of Mr. V.S. Parthasarthy  and  the  irresistible  conclusion  is  that  the  same  are  genuine and do not come under the cloud of suspicion at  all.  

27.That being so, in the light of the admitted position

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that accused No. 1 retired in the year 1992 and has also  given an undertaking to the Company as far as back as  5.1.2000 categorically admitting and agreeing to vacate  the premises on or before 31.1.2000, it was incumbent on  his part to honour the same.

28.The  letter  of  the  accused  No.  1  dated  05.01.2000  is  reproduced herein below:-

"In regard to the above subject I the  undersigned  would  be  grateful  to  you  if  you  would give me one month time till January 31st  2000 to vacate the premises that was given to me  while  I  was  in  service  with  your  esteemed  organisation."   Das John Peter

29. Even after taking into consideration all the defences  taken   by   accused,  their  eviction  from  the  servant  quarter  

- 12 - is inevitable.  Since he has committed default of his own  promise, we have no other choice or option but to direct  the accused persons to vacate the premises by or before 1st  

October,  2010  and  to   hand  over  its  peaceful  vacant  possession  to the Company.   30.We have done so exercising the powers conferred on us by  

virtue of provisions of Article 142 of the Constitution  which cast a duty on us to do complete justice between  the parties.  

31.It  is  clear  from  the  impugned  orders  that  there  is  manifest  illegality  in  the  same  and  have  resulted  in

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palpable injustice to the Appellant/Company curable at  this stage under Article 142 of the Constitution as the  aforesaid powers are inherent on this Court as guardian  of the Constitution.

32.According to us, no useful purpose would be served even  if the matter is remitted to Magistrate for trial on  merits.  We hold so because equity also does not swing in  favour of the accused, who have displayed adamant and  dilatory attitude.   

33.From the date of retirement of accused No. 1 till date,  more than 18 years have passed by and he has used the  servant quarter without having any right to do so. No  further  mercy  or  sympathy  can  be  shown  to  such  an  accused.

34.Thus, looking to the matter from all angles we are of  - 13 -

the  considered  opinion  that  the  order  passed  by  Metropolitan Magistrate as also by  the High Court cannot  be  sustained  in  law.   Same  are  hereby  set  aside  and  quashed.  This  we  have  to  do  to  give  quietus  to the  litigation which had commenced long years back. 35.Appellant's complaint filed under section 630 of the Act  

is hereby allowed and accused is granted time to vacate  the servant quarter as mentioned hereinabove on or before  1.10.2010  and  to  hand  over  its  peaceful  and  vacant  possession to the appellant company. In default thereof

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accused shall have to suffer imprisonment for a term of  one year and fine of Rs. 10,000/-. In default of payment  of fine, the accused shall suffer further imprisonment of  one month.

36.We hope and trust at least good sense shall prevail on  the accused and instead of running the risk of being sent  to jail, they would abide by the first part of the order  and do the needful. If the accused persons fail to do so  then the appellant shall be entitled to take police help  to get our order executed.   

37.Appeal stands allowed accordingly.   

......................J. [DALVEER BHANDARI]

New Delhi.    ......................J. July 20, 2010 [DEEPAK VERMA]